Title II Lite: Scalia's Way

FCC Chairman Julius Genachowskiand General Counsel Austin Schlick are calling their Title II Lite approach tobroadband regulation a "third way," but they might as well call it"Scalia's Way."

In outlining the proposal Thursday(may 6), Schlick cited Justice Antonin Scalia's dissenting opinion in the BrandX case, which was the one where the Supreme Court upheld the FCC's classificationof broadband as a Title I information service.

Scalia had argued that thetransmission and computing functions should be treated as two separatecomponents, and the FCC has decided the minority opinion provides its best pathforward.

"Justice Scalia's bifurcatedview of broadband Internet access service is entirely consistent with (althoughnot compelled by) the Brand X majority opinion," said Schlick in outliningthe proposal. "This course would also sync up the commission's legalapproach with its policy of (i) keeping the Internet unregulated while (ii)exercising some supervision of access connections.

Under the FCC's proposal, whichnet neutrality activists said they expect to be voted on within the nextseveral weeks, "the provisions of Title II would apply solely to thetransmission component of broadband access service, while the informationcomponent would be subject to, at most, whatever ancillary jurisdiction mayexist under Title I," said Schlick.

Schlick says the commission willnot apply the "vast majority" of the Title II regulations tobroadband access services, with "as few as six" sufficient to do thejob he says.

Those six would cover:unreasonable denials of service; promoting universal service; protectingconfidential information; and requiring accessibility of equipment, includingcustomer premises equipment, to the disabled.

Schlick said what would not beincluded in the third way is any new unbundling authority, rate regulation or,likely, mandatory access by unaffiliated ISPs to cable modem service. "Thecommission has not taken any action to implement mandatory access to cablebroadband networks," said Schlick, "and a consensus seems to havedeveloped that it should not be ordered."